In 2023, a couple purchased a home only to discover that the floors contained
asbestos-contaminated vermiculite, an insulation material commonly used before the 1990s but now controversial. The couple claimed $15,000 from the sellers for asbestos removal work on the grounds that it constituted a latent defect. The sellers, for their part, sought $5,000 for abuse of process.

The Court dismissed both claims. Why? Because, even though asbestos is invisible to the naked eye, the home remained habitable and safe. In other words, there was no loss of use: the home could be used normally. The Court concluded that the vermiculite contained asbestos, but that this did not constitute a latent defect. It highlighted several important elements:

- The home remains habitable and safe ;
- There is no evidence that asbestos fibres are being released into the air ;
- The buyers did not ask any questions about the presence of asbestos at the time of the sale ;
- The sellers did not breach their obligation of delivery ;
- No clause in the contract mentioned this point and no legal obligation was breached.
violée.

In short, the mere presence of asbestos is not sufficient to establish a latent defect. According to the Court, the asbestos caused no functional loss and no proven danger to the occupants. Therefore, no latent defect. The Court clarified that even if the sellers had been aware of the presence of asbestos, this would not have changed the outcome of the dispute as long as the material remained stable and risk-free.

So, when do we speak of a latent defect?
To constitute a latent defect within the meaning of the law, the defect must be: a) serious (renders the property unfit for the use for which it is intended or diminishes its usefulness to such an extent that the buyer would not have paid the same price); b) unknown to the buyer at the time of the sale; c) hidden; and d) prior to the sale. These four conditions are cumulative and must be satisfied for the Court to conclude that a latent defect exists. The legal warranty of quality protects buyers, but not for everything. It does not protect them against minor defects, apparent defects, defects known to the buyer, or defects that do not impair the residential use of the property, such as the mere presence of asbestos inside walls or under floors. The law stipulates that an apparent defect must be ascertainable by a buyer without resorting to an expert.

In closing, it is always recommended to conduct a pre-purchase inspection before buying a property, to carefully read the sellers' declaration, and to inquire about the standards that were in effect at the time of construction of the property in question. The buyer must be prudent and diligent in their acquisition process, and the seller must disclose all factors that may affect the property.

Sources :
Civil Code of Quebec: art. 1726
Ref.: Boucher c. Fortin, 2025 QCCQ 2021.
To read the full judgment : https://canlii.ca/t/kcgkd